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Chief Justice John Roberts' Role on Impeachment Trial; White House Issues Formal Threat to John Bolton to Stop Book Publication; Interview with Sen. Tom Udall (D-NM) on Impeachment Trial; Alan Dershowitz Argues for Nearly Unchallenged Presidential Power. Aired 9:30-10a ET

Aired January 30, 2020 - 09:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[09:30:00]

POPPY HARLOW, CNN ANCHOR: More on the "Bleacher Report" this morning.

You know, I -- I'll never forget watching Jerry West and Shaquille O'Neal's reaction this week, too. What did Kyrie Irving have to say?

ANDY SCHOLES, CNN SPORTS CORRESPONDENT: Well, you know, Poppy and Jim, there's been emotional stuff just going on all week. And, you know, Kobe and his daughter Gigi actually attended a Nets game in Brooklyn back in December right before Christmas. And, you know, the video of Kobe and Gigi just discussing basketball and discussing the game from those exact seats has been seen, you know, many times.

And the team actually played this video on the jumbotron before shining a light on those exact seats that stayed empty with purple and yellow flowers on them. The team then announced the names of all who died in the crash before holding a 24-second moment of silence.

And Kobe's good friend Kyrie Irving was getting very emotional during that time. Kyrie considered Kobe a mentor and said their relationship was much deeper than basketball.

Now Clippers star Kawhi Leonard is one of the many players who went to Kobe for advice. And one of the things they talked about was how to commute around Southern California. Kawhi says since moving to L.A. last year he began using helicopters to get to and from his home in San Diego. And Kawhi says Kobe's pilot, Ara Zobayan, who dies in Sunday's crash, he flew him many times as well.

(BEGIN VIDEO CLIP)

KAWHI LEONARD, LOS ANGELES CLIPPERS FORWARD: He's one of the best pilots. You know, that's a guy who you ask for, you know, to fly you from city to city. And he just a real friend. You know, he'd drop me off and say he's about to go pick up Kobe. And Kobe said hello or he'll, you know, just be like, I just dropped Kobe off, and he said hello, vice versa. So it's just a crazy -- he's a good dude. And, you know, I'm sorry for everybody.

(END VIDEO CLIP) SCHOLES: Now here in Miami, preparations continue for Super Bowl LIV. NFL commissioner Roger Goodell saying yesterday that the league will honor Kobe in some fashion during the game. But he did not offer any details.

Now one of the few players in this year's game with Super Bowl experience is the 49ers' Richard Sherman. He played in this game twice with the Seahawks. Now Sherman's son Raines' 5th birthday just three days after the Super Bowl and he asked dad, well, for a championship ring for his birthday.

And I asked Sherman yesterday, how much more special is this Super Bowl experience for him now that his son can understand what's going on?

(BEGIN VIDEO CLIP)

RICHARD SHERMAN, SAN FRANCISCO 49ERS CORNERBACK: It's unbelievable. I mean, that's one of the best parts about this experience. You know, and that's what makes it so much different and so much -- and it gives you so much more perspective because he's so aware of it. He's fully aware. He's like, hey, that's a Super Bowl helmet. Hey, you got to go in the Super Bowl. If you win, you get the championship trophy. He fully understands it and that's what's so cool to me. It really gives you something to fight for. It gives you something to go out there and it will be a special memory and something he'll remember forever.

(END VIDEO CLIP)

SCHOLES: And I'll tell you what, guys, if Sherman is able to bring home a Super Bowl championship ring to his son's 1st birthday, Raine is going to be winning a show and tell championships for a long time.

HARLOW: My kid only wants light-up shoes so I'm lucky.

SCHOLES: Easy to deliver that. Yes.

JIM SCIUTTO, CNN ANCHOR: I was to say, easier to purchase online.

HARLOW: I got that.

SCIUTTO: Yes.

HARLOW: I got that. Thanks, Andy. It will be fun to watch.

Republicans are laying the groundwork to try to bring a rapid end to the president's impeachment trial. But could the chief justice derail that? We'll talk about it, next.

[09:35:00]

(COMMERCIAL BREAK)

HARLOW: So from trial ref to potential tiebreaker, Chief Justice John Roberts could make history as the Senate votes on witnesses.

SCIUTTO: CNN's Supreme Court analyst Joan Biskupic joins us now to discuss.

So this is not a farfetched possibility that you get three Republican votes to call witnesses. That gets you to 50. Say it's Romney -- Susan Collins.

HARLOW: Murkowski.

SCIUTTO: Maybe Murkowski. Would the Supreme Court chief justice have the ability to break that tie? One. It's one question. Two, really, and you know him well, would he use it?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Right. Right. I think basically no to both those answers but let me explain, Jim, because there's just so much talk about it right now because we're at this do or die moment. And Democrats, especially, are thinking, maybe the chief justice can step in and help their side to make sure that there are witnesses at this trial that could end as soon as tomorrow.

Let me tell you what the Constitution says and what the Senate precedent has been. The Constitution says that the chief justice shall preside. But he's not presiding the way the vice president would preside over the Senate for a non-impeachment session. When the vice president presides the Constitution specifically gives him the power to break a tie. The Constitution doesn't say that for the chief justice. And Senate rules envision a much more limited role.

Now there is precedent going back to 1868 when Chief Justice Salmon Chase presided over the impeachment trial of President Andrew Johnson. He did break tie votes twice, but it was controversial at the time and it remains controversial.

Current Senate rules do not envision that at all, Jim and Poppy, and, in fact, give the chief limited responsibility to make determinations on evidence in terms of the relevance and materiality, but he can be overturned in those cases by a majority of the Senate.

HARLOW: Right. Only 51 votes to return that. OK. So yesterday we heard, there was a lot of hubbub over what Joe Manchin said thinking Hunter Biden was a relevant witness and then asked would he vote to hear from him and he said yet but he qualified this. He said, if the judge or whoever rules it is pertinent.

So can you talk about what power the chief justice has to rule on the relevance or pertinence of a witness?

[09:40:03]

BISKUPIC: Right. So that would be separate to, should we even have witnesses here?

HARLOW: Yes.

BISKUPIC: Where I think the chief because it's such a salient, relevant question will not want to interject on that especially with a crucial tie vote. But say there's some question about evidence, even what a witness might testify to in terms of its relevance and materiality that the rules do allow for the chief to make some sort of determination there. And if Chief Justice John Roberts does make some determination about, you know, on a motion involving Hunter Biden or anyone else, he could do that. Again within the confines of a witness who has already been called.

HARLOW: Yes.

BISKUPIC: But again, under the Senate rules as they stand now, a majority could reverse that determination. So that might be what Senator Manchin is getting at there.

HARLOW: OK.

SCIUTTO: So sounds like the chief justice is more likely to remain in the background on this as perhaps he might have preferred.

Joan Biskupic, thanks very much, as always.

BISKUPIC: That's right. Thank you.

SCIUTTO: President Trump's legal team presenting really a stunning new defense. Arguing for nearly unchallenged presidential powers. Got to listen to this. It's important. We're going to have more coming up.

(COMMERCIAL BREAK)

[09:45:49]

SCIUTTO: The White House reportedly issuing a formal threat to keep former National Security adviser John Bolton from publishing his book. Sources tell CNN they claim it contains classified information which his lawyers deny.

HARLOW: As that fight unfolds, the president is not letting up on his Twitter attacks on Bolton's credibility.

Let's go to the White House. Our correspondent John Harwood joins us there this morning.

Any sense from those within the walls of the White House about where the president's head is this morning?

JOHN HARWOOD, CNN WHITE HOUSE CORRESPONDENT: Well, I think the president is conducting a multifront campaign. First of all, pressure on those Republican senators. Secondly, the attacks on John Bolton to try to discredit his testimony in the eyes of the public, as well as those Republican senators. And I think the historic solidarity of the Republican Party at this moment, the refusal of Republican senators to defy the president is a defining feature of this era of Republican politics, and I think they are counting on that to keep at least 50 Republican senators opposed to calling witnesses.

Now that breathtaking argument, that historically unusual argument that Alan Dershowitz made that seems to defy our popular common understanding of how the Constitution works, that the president can do almost anything he wants, I'm not sure that's going to help him with people like Lamar Alexander who are going to decide ultimately if there are witnesses. He may have overshot the runway there. But you hire Alan Dershowitz as your defense lawyer, somebody who likes to make grandiose statements, who likes to hear himself talk, that's one of the things you're going to get -- Poppy.

SCIUTTO: Yes. Fair enough. John Harwood, thank you very much.

Let's talk about what we heard yesterday, what today holds. Democratic Senator Tom Udall of New Mexico joins us this morning.

Good morning. Thank you for being here.

SEN. TOM UDALL (D-NM): Good morning.

HARLOW: Look, I mean, the latest reporting to CNN is that it looks like McConnell got his numbers, which is not a surprise here. He's pretty good at that. What do Democrats do if the vote tomorrow is no witnesses, let's tie this thing up, put a bow on it and the president can go around and say, I -- you know, I've been acquitted? What do you do?

UDALL: Well, I think we continue our argument, which is a very strong argument. It's not a trial unless you have witnesses and unless you get the documents that the witnesses either have written notes simultaneously. That's the best evidence. And I don't want to go to the place that it's a sham trial right now. But without any witnesses and without any documents, this hasn't been a real trial. And we've heard the chief arguer for the House managers say that over and over again. He wants witnesses. He wants documents. And if they are just going to shut it down and not do it, I think it's going to be very, very unfortunate.

SCIUTTO: You have a White House refusing here, of course, to block witnesses from the House. Refusing to vote for witnesses in the Senate. Blocking documents. And now you have this expansive argument from the president's lawyer on the Senate floor, you heard it yesterday, saying that hey, if the president deems his re-election in the national interest, he can do virtually whatever he wants.

For folks at home, has Congress just been sidelined in effect as a check on the president's power?

UDALL: Well, that isn't what the Constitution is about. The Constitution is about a check and balance. And he doesn't have unlimited power. And so, really, what you have here is probably those most expansive argument for presidential power in history. And I don't think that is what the founders believed. I don't think that's what good thinking people believe today, is the way our government should work and the way it's structured.

HARLOW: Senator, the president in a tweet yesterday highlighted an interview that John Bolton gave, a radio interview on August 27th, where if you read the majority of the transcript, he's referring to both of the August calls that President Trump had with Zelensky, both early in August and then that controversial one on the 25th that we're all talking about and why we're here, and he said game over because Bolton described those calls in that interview as, quote, "warm and cordial."

[09:50:02]

Does this make you question John Bolton's motives in writing this book now, including what we know he includes in the book and being open to testifying about just that when earlier he called it warm and cordial?

UDALL: Well, the important thing here isn't questioning motives, it's to get the firsthand testimony. We don't have this firsthand testimony.

HARLOW: Well, I think the veracity -- I guess I should have phrased it differently. The veracity of what Bolton is saying then versus now.

UDALL: Well, that's -- when we get his firsthand testimony that's what we make the judgments on, on all of the things like you're talking about.

HARLOW: Yes.

UDALL: But here we have a person who talked to the president of the United States, every single day. He was his national security adviser, this is a national security issue, when you get into the situation, where you're cutting off foreign aid to an ally, and you're doing it for political purposes, it is a shakedown, really, what's going on. And so what we're talking about here is getting his testimony and then evaluating it after you see how he testifies, answers all the questions.

I'm not making the argument that he's a totally one-sided witness, but I really believe that he's extremely important witness to the issues at hand.

SCIUTTO: I want to ask you, again, about what comes next, right? Because the president's lawyers also argued on floor of the Senate, before you and others, that it's OK to accept foreign help, foreign information from a foreign government. Remarkable argument to make, four years after we saw Russia's interference in the 2016 election. I wonder if that argument and in effect by accepting that argument, your GOP colleagues, have they opened this country up to a repeat of that kind of interference from abroad, opened up presidents not just to let it happen, but to pursue it happening?

UDALL: I don't have any doubt that's the road you're going down. And it is a pretty outrageous road when you think about it, that you can shake down a foreign country to create a political situation so that you win the next election. And that's the real threat here. We're talking about preventing this kind of activity going into 2020. And that's the reason that this action has been brought and that's the reason we should have a full and complete hearing with witnesses and documents.

SCIUTTO: Yes. It'd be interesting to see how the president takes that as well.

Senator Tom Udall, real pleasure to have you on the program this morning.

UDALL: Thank you. Yes. Thank you very much.

HARLOW: President Trump's lawyers presenting a defense on the Senate floor, this seems to mirror a rhetoric that the president has been using since he got into the White House. Here is a walk down memory lane.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I have an Article 2 where I have the right to do whatever I want as president. I am the chosen one.

RICK PERRY, FORMER ENERGY SECRETARY: I said, Mr. President, I know there are people that said, you know, you said you were the chosen one. And I said, you were.

TRUMP: But more importantly, Article 2 allows me to do whatever I want.

MIKE PENCE, VICE PRESIDENT OF THE UNITED STATES: Greatest privilege of my life to serve as vice president to a president who is keeping his word to the American people.

REINCE PRIEBUS, FORMER WHITE HOUSE CHIEF OF STAFF: Mr. President, we thank you for the opportunity and the blessing that you've given us to serve your agenda.

TRUMP: Nobody ever mentions Article 2, it gives me all of these rights at a level that nobody has ever seen before.

(END VIDEO CLIP)

SCIUTTO: "A level no one has ever seen before."

Joining us now to discuss, Scott Jennings, CNN political commentator, also former special assistant to President George W. Bush, and JW Verret, he's a law professor at George Mason, lifelong Republican who served as economic adviser on President Trump's transition team. He is now endorsing Joe Biden and urging Republicans to oppose the president.

Thanks to both of you here. Scott, let me begin with you. You're a conservative, traditionally conservatives have a conservative view of conservative reading of the Constitution of checks and balances. Even if presidential power here. You heard president's lawyer argue on the floor that a president can do whatever he wants to get re-elected if he deems as you might expect a president to do his re-election being in the national interest, even accepting help from a foreign government.

Is that -- is that what the American people want? Is that what the Constitution called for? Is that your view of presidential power?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: No, I didn't agree with that logic. I think a much better way to explain it, and a much better argument, frankly, is to say what's obvious, which is that politicians, presidents and others, frequently take actions that have dual purposes. Purpose of being part of their official function and it might help them, you know, politically.

I mean, any bill signing, take the USMCA that the president is signing this week. It's an official act for him to sign that trade deal into law, but he knows it's going to be politically popular and also going to help him get re-elected. It's a dual purpose action. So I did not agree with Professor Dershowitz's logic train on the floor of the Senate, but I do think it's a reasonable thing to understand and for all of us to acknowledge that presidents and other politicians often do things that have the dual purpose of being official in nature and politically helpful.

[09:55:08]

HARLOW: Which made, I think, the joint question, JW, from Susan Collins and Lisa Murkowski yesterday even more fascinating, for sure. Just, again, to note that you were -- you have been a conservative since you were 12 years old, you were on the president's, you know, transition team on the economics front and now you want every Republican out there to vote in open primaries for Joe Biden. So do you think that Alan Dershowitz's argument helped the president?

JW VERRET, ASSOCIATE PROFESSOR OF LAW, GEORGE MASON UNIVERSITY: I don't think it does. I don't think it was ever designed to do that. I think Alan Dershowitz was there to appeal to an audience of one, the president. the president. I think it's inconsistent with everything I believe in -- I know it's inconsistent with everything I believe in as a conservative, as a constitutional conservative, and I know that the Republicans in Congress don't agree with that privately either.

Look, I think the future of this hinges on the election. I think we all knew there was going to be acquittal, but there was at least going to be an airing of this problem. I think that what the evidence has demonstrated that we have and will be consistent with the evidence we don't have that the White House is blocking is that this was a uni- purpose, a single purpose obstruction of funding, designed entirely for the president's own re-election.

He doesn't care about corruption. He hasn't -- I mean, that was a sort of justification after the fact that OMB scrambled to find after the president made his decision. So that much is clear. Now it is all about the election. And whether Democrats are smart enough to pick a moderate that Republicans like me can support in the general like Joe Biden.

SCIUTTO: Let me ask you, though, Scott, how -- because the Democrats' argument is, OK, fine, leave it to the election but in effect you've given cart blanche for the president to cheat in that election, I mean, even for instance his lawyers well said, you can accept foreign help, information from a foreign government. What kind of government? Authoritarian governments, Russia, China, governments who might supply misinformation? What is to stop the president from reading this as I can do whatever I want? JENNINGS: Well, a lot of people have made this argument that all

presidents fill the space left by their predecessors and -- or that they will take any inch that, you know, they're supposedly given. I totally disagree with that. I mean if that were the case what would presidential behavior have been like in the wake of Bill Clinton being acquitted in his impeachment trial? It would have been very --

(CROSSTALK)

SCIUTTO: But this is something very specific, Scott. This is about accepting foreign help in an election.

JENNINGS: And so I just fundamentally --

SCIUTTO: Which is nine months away.

JENNINGS: Yes, I fundamentally agree with, A, the idea that the next election is already or fundamentally must be tainted, and, B, I don't think the Democrats are making a very wise argument, frankly, in going on the floor of the Senate and telling people, if you leave Donald Trump on the ballot, then the next election is already tainted. It is already illegitimate. Honestly, I can't imagine Vladimir Putin drawing that up any better than to have a major political party saying the last election was stolen and the next one is rigged. If on singular person is allowed to continue. I think that's a frankly terrible argument. And it's not been -- it's obviously not winning them any support. It's not

SCIUTTO: My question was --

JENNINGS: You got Democrat senators saying --

SCIUTTO: My question was not the election being tainted already. My question was, if they're saying it's OK to accept foreign help, which the press has expressed wiliness to do in the past, does that not then -- if he accepts it and takes that as carte blanche -- does that taint the election? That's my question.

JENNINGS: Accepting foreign help is not appropriate. But in this particular case, what I think the argument is over is if a person running for a political office did something in their previous job, in this case, vice president, that deserves scrutiny, is that OK? And obviously Republicans think that Joe Biden's actions as vice president do deserve scrutiny. That's far different than accepting foreign help. Just running for president doesn't absolve you of having to answer questions about your record.

HARLOW: Well, so, finally, JW, final word to you, and this is one of the key questions that Senator Udall brought up yesterday, and that is, well, then, what about, you know, should work by Jared Kushner, et cetera, with foreign countries be looked at? Is that relevant?

VERRET: If the president wanted to open a legitimate inquiry into those issues, he should have had the Department of Justice do it. He should not have taken the route he did, laws matter, and one of the things the founders were most concerned about and their motivating principle behind the impeachment section of the Constitution was a concern that this new small country would be interfered with and their elections would be interfered with by Britain and France and other countries in Europe.

That was foremost on their mind when they included bribery and treason as the two first examples they listed of impeachable offenses.

HARLOW: JW Verret, Scott Jennings, nice to have you on together. Come back.

SCIUTTO: Yes.

HARLOW: Come back soon. Thanks, guys.

JENNINGS: Thanks, guys.

VERRET: Thank you.

HARLOW: Another big day ahead. Thanks to all of you for joining us. We'll see you back here tomorrow morning.

SCIUTTO: I'm Jim Sciutto. CNN's special coverage of the Senate impeachment trial, be sure to watch, coming to a head here now, it begins right now.